Judge Lays Out New Apple v Psystar Roadmap

By Jeff Gamet

Jul 13th, 2009 10:10 AM EDT

Apple's case against Psystar, the company that's making unauthorized Mac clones, is back on track with a new trial date set for January 11, 2010. The trial had been temporarily put on hold after Psystar filed for bankruptcy protection in Florida.

Judge Alsup, the Judge overseeing Apple's copyright case in northern California, set an August 21 deadline for Discovery and all replies to Discovery must be submitted two weeks later. Any motions, including Summary Judgement or Dismissal motions, must be submitted by October 8, and a final pre-trial conference is scheduled for December 14.

Apple filed a lawsuit against Psystar in northern California claiming the company was violating the Mac OS X licensing agreement with end users, and that it was violating the Digital Millennium Copyright Act with the steps it used to install the Mac operating system on PCs. Psystar asserted that it should be allowed to build and sell PCs with Mac OS X pre-installed and that Apple is overstepping its bounds by blocking companies from selling Mac clones.

The case in California stalled temporarily when Psystar filed for bankruptcy protection in Florida due in part to its extensive legal bills. The Florida court granted Apple's request to lift the automatic stay on its California case, and shortly after Psystar moved to drop its bankruptcy saying it couldn't deal with the two cases at the same time. The Florida court hasn't yet agreed to drop the bankruptcy filing.

Since Psystar is still bound by the requirements of the bankruptcy court, Apple will likely watch closely for any information about who is paying the company's legal bills since Carr & Farrell -- the legal firm Psystar hired to represent it in California -- is still on the job.

"It has been my experience that lawyers don't work for free, except on pro bono cases, and this is not for Carr & Ferrell a pro bono case," an attorney familiar with this type of case told TMO. "Yet, while in bankruptcy, Psystar must report any payment to Carr of Carr's pre-petition debt to the bankruptcy court through the U.S. Trustee and cannot make any payment of Carr's debt that would either prejudice other creditors or pay Carr's debt ahead of other creditors, at least not without the bankruptcy court's permission."

He added "If Psystar is paying Carr's post-petition legal fees as an administrative expense, which is an expense necessary to administer Psystar's bankruptcy estate, that too must appear in Psystar regular reports to the bankruptcy court through the U.S. Trustees' office."

If Psystar doesn't report any payments for Car & Ferrell to the bankruptcy court, the idea that someone else is funding the company's legal defense will likely gain more traction. As a creditor in Psystar's bankruptcy case Apple is entitled to the company's payment reports, and will likely follow those reports closely.

If Psystar's bankruptcy reports show that other companies are helping fund the company's legal battle, Apple could try to include them in its case against Psystar, too. If so, Apple's case against Psystar could drag out even longer.